Should a judges be allowed to re-write laws they don't agree instead of simply interpreting them?

Question

My last question about Ct. Governor Jodi Rell's judicial picks sparked some really dumb answers. Just to be clear this time The reason why Republicans don't like liberal judges IS NOT because they are not our club. Thats not the reason.

We don't like liberal judges because they don't follow the law as written by democraticly (small d) elected officials. They just follow their own opinions and essentailly re-write laws. Now isn't that a bad thing? And why would a Republican Governor (Rell) appoint such a liberal if she was not in fact a closet liberal Democrat (big D) herself? Yeah its a loaded question. Now how about some smart answers by either liberals or conservatives. Stop playing dumb.

Answer 1

Judges should never be allowed to rewrite any law period!

Answer 2

Legislation from the bench is the only way a liberal agenda gets put into place. Try to vote some of the crap into law that "judges" (very small "j") jam down our throat on a daily basis. I see very little point in voting on something just to see a judge (again with the small "j") overturn it as they had promised to do. How many times has "gay marriage" been voted down, even in such a bastion of liberalism as California. But State Supreme Court judges (once more with the small "j") don't give a damn what the people want. They will advance a liberal agenda by steamrolling 99% of the people if necessary.

Until the liberals kill some more babies and those nonvoters don't make it to the poles and don't vote we will be stuck with this. Roe v. Wade sited privacy as the reason to legislate from the bench. The word is not in the Constitution. But, exactly 21 years later the Conservatives took the House and a few years later the Senate.

I'll tell you, I am so much more conservative than Rush Limbaugh that we don't even exist on the same plane, but if the Republicans don't start exercising some leadership as legislators, I will be voting for cartoon characters at the next election.

Answer 3

I didn't see your previous question, so don't yell at me about it.

To your top-level question, no they should not be allowed to write law. However, they should, when striking down a law, explain their grounds in such a way that those who do write laws know what is and isn't constitutional.

To the rest of your screed (the parts I understand, as I didn't see your previous question, and am not from your state): They don't write law. What they do is enforce the Constitution by striking down unconstitutional laws. That's their job.

It's called "checks and balances." Legislative bodies can't pass laws that violate the Constitution. Well, they CAN, but the courts are there to stop those laws from being enforced.

Funny how many people are on the other side than they think they are. The "justice" on the Supreme Court of the US that has most often voted to strike legislatively-passed law (what you refer to as "writing law") is Clarence Thomas. Hardly a liberal.

If you had wanted an answer to whatever it was you asked before, you should have said what it was. There are who-knows-how-many people on this site at a time, and questions come and go from the home page, so there's a good chance that few of the people reading your current question saw the first one.

PS: Well, as coragryph seems to actually know what he's talking about, I stand corrected: I guess they do "write law" after all -- or at least create binding ammendments of laws, if I understand correctly. Thanks, dude!

Answer 4

There have been and are both liberal and conservative Supreme Court Justices who have re-written law rather than simply interpreted it.

One of the clearest signs of when a judge has re-written laws instead of interpreting them is when they write the opinion explaining the decision and, while you read it, you detect falsehoods and illogical "reasoning" in the opinion. They was one time in which, before I started reading a particular Supreme Court majority opinion, I expected to agree with the conclusion that I knew they had arrived at. But by the time I had finished reading it I started to have grave doubts about the correctness of the decision. And then reading the dissenting opinion and reading one of the precedents that the majority opinion claimed was NOT pertinent to the case, I became absolutely convinced that the majority Justices were being "activists." And the case I am talking about here was decided by: Chief Justice Rehnquist, and Justices O'Connor, Scalia, Kennedy (who wrote the opinion) and Thomas. The case was Miller v. Johnson (1995).

It is utterly preposterous to assume that the Justices are always doing their job right or that they never lie when they write their opinions explaining the decisions. I have seen some outright lies in Supreme Court opinions. I have often seen preposterously flawed "reasoning."

So, in response to cassandra's request for some specific examples of judges re-writing laws, I'll mention a few.

Skinner v. Oklahoma (1942, contradicting but not overturning the precedent of Buck v. Bell, 1927).
Griswold v. Connecticut (1965).
Roe v. Wade (1973, relying on both of the precedents just mentioned).
Lawrence v. Texas (2003, a dishonest opinion overturning Bowers v. Hardwick, 1986, which had been honestly written).
Harper v. Virginia Brd of Elec. (1966, overturning Breedlove v. Suttles, 1937, but not offering any explanation as to why the precedent had been wrongly decided).
Levy v. Louisiana and Glona v. American Guaranty (both 1968, two of the worst-written opinions I have ever seen).
Miller v. Johnson (1995, contradicting but not overturning United Jewish Org. v. Carey, 1977).
Romer v. Evans (1996).

And worst of all, Bush v. Gore (2000).

Answer 5

No. The basis of the separation of powers doctrine is that courts don't write laws. That has not stopped them from doing so (e.g., gay marriage in Massachusetts), but it should have. For the most part, judges (especially at the lower levels) are careful to follow the laws as written, but at the top level, sometimes they don't, and I see this as a very bad thing.
That said, there must be room for judges to rule as unconstitutional those laws which inflict harm on a minority for the (alleged) benefit of a majority. The constitution must draw as sharp a line as possible between the authority of the state and the rights of individuals.

Answer 6

this is the regulation, judges view the regulation as they provide the impact of being in positive condition as they view the form. on each and every occasion I hear "activist judges" it consistently looks to return from the marvelous wing. not at all a peep how the Scalias and Clarence "i've got not at all theory approximately abortion or talked grimy to Anita Hill" Thomas arise with their judgements. The GOP had administration over the appointment technique for the previous 6 years. enable's see what they have positioned on the bench - Miers (very maximum suitable courtroom nominee with 0 skills) or the shoplifting fool, Claude Allen, with a bit of luck at the instant are not widespread. genuine, they weren't positioned on the bench, yet whilst they're the type of nominees Bush and his fools positioned forward, the courtroom gadget would be in situation for years.

Answer 7

Every time you turn around the judicial branch is legislating from the bench. From gay marriage, the Ten Commandments, nativity scenes and now the pledge of allegiance they have turned America upside down. What is next from the bench and what must we do to stop it?

Our Founding Fathers must be spinning in their graves. This is the worst kind of political correctness run amok. What's next? Will the courts now strip 'so help me God' from the pledge taken by new presidents? Will they demand we take “In God We Trust” off our currency because someone does not like it?

Answer 8

It is the judges job to interpret the law. That is why they call them judges. Just because that you do not agree with them on certain things does not make you right. All judges conservative and liberal do this, I find it odd that you just disagree with the liberal ones.

Answer 9

They actually cannot do so. Judges can only either interpret an existing law, declare that a law is preempted by another law, or declare that a law is preempted by the constitution.

There's this big hue and cry recently against 'activist judges' making laws. Actually, it's a judge's job to make law. Most people forget that.

Both the Australian and US legal systems are derived from the English Common Law. Under this model, the legislature writes prospective general laws, based around expectations and future events, and the courts interpret those laws to specific situations and applications by resolving specific controversies when they arise.

Those rulings that arise out of specific cases and controversies are called common law. Every time a court case is cited for a particular rule, that's an application of the Common Law. All of torts for example, as well as most of American criminal procedure, primarily are based on common law, rather than legislative statute.

The courts do not legislate. They do not impose any prospective general purpose laws, since that is the province of Congress (and the state legislatures). However, the Supreme Court does interpret the Constitution. And since the beginning, courts have had the job of interpreting laws and ruling on specific issues. Every time a court case is cited for a particular rule, that's an application of the Common Law.

Why do those rulings have any effect on later cases? Because of the doctrines of precedent and "stare decisis" (literally, "let the decision stand"). The rulings of courts have value in later cases to ensure that the same set of facts achieves the same outcome. That's why cases have precedent value. And that's really the only way the legal system can work. Can you imagine what the legal system would be like if every judge was completely free to interpret the laws, without any regard for what previous court decisions had said on the subject?

Judge-made law, common law, is essential to the proper functioning of the legal and legislative system that has served England, Australia and the US for centuries. Without that concept of binding precedent, every court case could come out completely differently, with no consistency. People could not depend on figuring out how a law was going to be interpreted, because judges were not allowed to make their interpretations binding on lower/later courts.

And if appellate decisions were not binding, then judges could ignore prior overrulings, hoping that they would get a different appellate judge who (because precedent is not binding) could happen to agree with them. We'd end up with a system like South Dakota, where laws are passed regardless of the fact that an identical one had been declared illegal, just because a different appellate judge might rule differently. Utter chaos.

Precedent and "stare decisis" are go back centuries to the common law courts of England. They are mentioned as essential in Supreme Court cases dating back to the 1820s. The concepts go back at least to the Code of Justian around 500 AD. And both are still necessary to have a stable functional court system. That doesn't mean rulings cannot change; only that such changes must be for a strong and valid reason, rather than being arbtirary or capricious.

So, it's the job of courts to interpret the laws, and to apply them to specific types of situations. And for stability sake, those decisions must have binding authority on lower courts through precedence. It's also the job of the Supreme Court to interpret the Constitution, which includes applying that interpretation nationally.

The only alternative to having the Supreme Court not create precedent that is binding nationally is to throw away the doctrine of precedent entirely. That means that any court can come up with any interpretation, regardless of how the law was interpreted in the past. If the legislature wanted consistency, then the legislatures would have to modify and update the laws, based upon every interpretation that was decided by the courts. Every law would be constantly in flux, as the legislature tweaked wording and added exceptions into the statutes. So, either legislators would constantly need to update laws to reflect and include every possible later specific interpretation, or we lose any concept of stability and predictability in the legal system.

To avoid this, the English Common Law (and its American and Australian counterparts) allowed Judges to have their interpretations be independently binding, as case precedent. This way, the branch of government which is making the interpretations, the judiciary, is responsible for publishing and organizing its own common law declarations, rather than forcing the legislature to constantly be doing that.Remove the ability of the courts to make law and you drastically weaken the stability of the entire legal system.

People also forget that it was 'activist judges' that forced states to allow minorities into schools, and 'activist judges' that forced states to allow people of different races to marry. It's a judge's job to say when laws are illegal.

The complaint against 'Activist Judges' is not that they are making the rulings that their job requires. It's simply that some people in power don't like the rulings, and this is their way to complain while obscuring the real issue.

Answer 10

No, but many of them do. Judges, especially federal judges, seem to have very little accountability.